Victorian Numbered Acts Victorian Numbered ActsAfter Subdivision 2 of Division 2 of Part 9B of the Principal Act insert —
(1) The Minister may, in accordance with this Subdivision, enter into an agreement with a person for the provision by that person of land or works or a combination of land and works to meet the whole or part of that person's liability or expected liability to pay a growth areas infrastructure contribution (a work-in-kind agreement ).
(2) A work-in-kind agreement may be entered into with other parties in addition to the person liable to pay the growth areas infrastructure contribution.
Note
Other parties may include another Minister or a public authority or an owner of land affected by the work-in-kind agreement.
(3) The land or works to be provided under a work-in-kind agreement must be—
(a) situated in a growth area; and
(b) of a type that may be funded from the Growth Areas Public Transport Fund under section 201VA or from the Building New Communities Fund under section 201VB.
(4) A work-in-kind agreement relating to a growth areas infrastructure contribution must be entered into before the day on which the contribution is payable.
(5) A work-in-kind agreement relating to a growth areas infrastructure contribution may be entered into whether or not the liability to pay the contribution arose before the commencement of this Subdivision.
(6) A work-in-kind agreement relating to a growth areas infrastructure contribution may be entered into in conjunction with the deferral of that contribution under Subdivision 3 or an approval for staged payment of that contribution under Subdivision 4.
(7) Before agreeing to enter into a work-in-kind agreement, the Minister must—
(a) consult with any other Minister that the Minister considers has a relevant interest in the subject matter of the agreement; and
(b) if the value of the work-in-kind agreement (within the meaning of section 201SLC(1)(e)) exceeds $2 million, obtain the approval of the Treasurer.
(1) A work-in-kind agreement must include the following matters—
(a) a description of any works to be carried out under the agreement;
(b) a description of the land on which any works are to be carried out under the agreement;
(c) a description of any land to be transferred under the agreement;
(d) the due date by which the agreement or any stage of the agreement is to be performed;
(e) the agreed value of any land to be transferred under the agreement or the agreed value of any works to be carried out under the agreement or the agreed value of the combination of both of those things (as the case requires) (the value of the work-in-kind agreement );
(f) the method or methods for calculating the value of works to be carried out under the agreement if they are only partly carried out;
(g) dispute resolution procedures;
(h) any other matters that the Minister thinks appropriate.
(2) A work-in-kind agreement may include provisions setting out the circumstances in which the agreement is ended wholly or as to any part of the land affected by the agreement.
(1) A work-in-kind agreement may contain a term that restricts a person, who has entered into the agreement to meet a liability to pay a growth areas infrastructure contribution or another person who is a party to the agreement, from any dealing or dealings with the following land unless the person has obtained the consent of the Minister—
(a) land that is to be transferred
under the agreement;
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(b) land on which works are to be carried out under the agreement (other than Crown land);
(c) the whole or part of the land in respect of which the growth areas infrastructure contribution is imposed.
(2) In this section, "dealing", in relation to land, includes entering into any sale, transaction or arrangement, or obtaining or granting any lease, licence or approval, with respect to the land, or making any improvements of a durable nature to the land, but does not include any of the following—
(a) a sale of any of the land to the person to whom the land is to be transferred under the work-in-kind agreement;
(b) any approvals relating to a plan of subdivision of the land to enable a sale of land for the purposes of paragraph (a);
(c) any works required to be carried out on the land under the work-in-kind agreement or approvals relating to those works;
(d) any approvals relating to the plan of subdivision of the land or building works to be carried out on the land in respect of which the growth areas infrastructure contribution is imposed;
(e) the discharging of the whole or any part of the land from any mortgage affecting that land.
The Minister must give the Commissioner and the Growth Areas Authority a copy of a work-in-kind agreement entered into under this Subdivision.
(1) The Minister may, with the agreement of the person who has entered into a work-in-kind agreement to meet a liability to pay a growth areas infrastructure contribution and all other parties to the agreement, amend the agreement to vary the terms of, or the parties to, the agreement.
(2) The Minister must give to the Commissioner and the Growth Areas Authority a copy of a work-in-kind agreement amended under subsection (1).
(1) The Minister may, with the agreement of the person who has entered into a work-in-kind agreement to meet a liability to pay a growth areas infrastructure contribution and all other parties to the agreement, end a work-in-kind agreement.
(2) The Minister must notify, in writing, the Commissioner and the Growth Areas Authority of the ending of a work-in-kind agreement under subsection (1).
(3) The power to end a work-in-kind agreement under subsection (1) is in addition to any other right that the Minister has to end a work-in-kind agreement in accordance with the agreement or at law.
(1) The Minister must apply to the Registrar of Titles to record a work-in-kind agreement on any folio of the Register relating to the following land (the land affected by the work-in-kind agreement )—
(a) land that is to be transferred under the agreement;
(b) land on which works are to be carried out under the agreement (other than Crown land);
(c) the whole or part of the land in respect of which the growth areas infrastructure contribution relating to the agreement is imposed.
(2) An application must—
(a) be in a form approved by the Registrar of Titles; and
(b) be accompanied by a copy of the work-in-kind agreement.
(3) The Registrar of Titles, on receiving an application that complies with subsection (2), may make a recording on each folio of the Register relating to land affected by the work-in-kind agreement.
(4) After the making of a recording in the
Register—
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(a) the burden of any covenant in the work-in-kind agreement runs with the land affected by that burden; and
(b) the Minister may enforce the covenant against any person deriving title from any person who entered into the covenant as if it were a restrictive covenant despite the fact that it may be positive in nature or that it is not for the benefit of any land of the Crown.
(5) The Minister must apply to the Registrar of Titles—
(a) if an amendment is made to the work-in-kind agreement, for the Registrar of Titles to remove the existing agreement from each folio of land on which the agreement is recorded and record the amended agreement on each folio of the Register relating to land affected by the work-in-kind agreement; or
(b) if a work-in-kind agreement is ended wholly or as to any part of the land, for the Registrar of Titles to, as appropriate, remove in whole or in part the recording of the agreement from any folio of the Register on which the agreement is recorded.
(6) An application under subsection (5) must—
(a) be in a form approved by the Registrar of Titles; and
(b) in the case of a work-in-kind agreement that has been amended, be accompanied by a copy of the agreement in its amended form.
(7) The Registrar of Titles, on receiving an application that complies with subsection (6), may (as the case requires)—
(a) remove the existing agreement from each folio of land on which the agreement is recorded and record the amended agreement on each folio of the Register relating to land affected by the work-in-kind agreement; or
(b) as appropriate, remove in whole or in part the recording of the agreement from any folio of the Register on which the agreement is recorded.
(1) A person, who is subject to a restriction on dealing with land that has been specified in a work-in-kind agreement in accordance with section 201SLD, must not, without the consent of the Minister, enter into or effect such a dealing with that land (within the meaning of section 201SLD) while the agreement is in force.
(2) Nothing in this section prevents—
(a) a mortgagee from exercising a power of foreclosure or sale in respect of the whole or any part of land that is subject to a restriction referred to in subsection (1); or
(b) an application to the Registrar of Titles for the registration of a charge in respect of unpaid tax (within the meaning of the Taxation Administration Act 1997 ) over the whole or any part of land that is subject to a restriction referred to in subsection (1).
The entering into a work-in-kind agreement by a person to meet the whole or part of a liability to pay a growth areas infrastructure contribution does not discharge the person from that liability.
Note
It is not until the person performs their obligations in accordance with the work-in-kind agreement that the value of the land or works provided can be taken to be a payment towards the growth areas infrastructure contribution owed (see section 201SLM).
A person who has entered into a work-in-kind agreement to meet a liability to pay a growth areas infrastructure contribution must, without delay, notify the Growth Areas Authority in writing of the following—
(a) the performance of the agreement;
(b) the performance of any stage of the agreement that must be performed by a due date specified in the agreement;
(c) if the agreement is not wholly performed by the due date for performance, how much of the agreement has been performed.
(1) The Growth Areas Authority acting on behalf of the Minister must, after receiving notification under section 201SLK, determine the following—
(a) whether a work-in-kind agreement or a stage of a work-in-kind agreement, which has an agreed value under the agreement, has been performed by the due date for performance;
(b) if a work-in-kind agreement has only been partly performed by the due date for performance or before it has been ended in accordance with section 201SLG(1), the value of the land or works provided in accordance with the agreement.
(2) The Growth Areas Authority must, without delay, notify the Commissioner in writing of any determination made under subsection (1).
(1) A person who has entered into a work-in-kind agreement to meet the whole or part of a liability to pay a growth areas infrastructure contribution is taken to have paid to the Commissioner an amount of that contribution that is equivalent to—
(a) if the agreement is wholly performed, the agreed value of the agreement; or
(b) if a stage of the agreement is wholly performed, the agreed value of that stage; or
(c) if the agreement is partly performed, the value of the land or works provided under the agreement as determined by the Growth Areas Authority.
(2) A person is taken to have paid an amount of a growth areas infrastructure contribution under subsection (1) at the time at which the Commissioner receives a notice from the Growth Areas Authority under section 201SLL(2) of its determination of the relevant matter referred to in subsection (1)(a), (b) or (c).
(1) If—
(a) a person liable to pay a growth areas infrastructure contribution has entered into a work-in-kind agreement to meet the whole or part of that liability and fails to perform that agreement or a stage of that agreement in accordance with the terms of the agreement by the due date for performance; and
(b) the contribution has been deferred under Subdivision 3 or is subject to an approval for staged payment under Subdivision 4—
the whole of the contribution becomes immediately payable as if the contribution had never been deferred or the approval had never been given.
Note
If the whole of the contribution is treated as never having been deferred or being subject to an approval for staged payment, a tax default within the meaning of the Taxation Administration Act 1997 will occur in respect of payment of the whole of the contribution that the person would have had to pay if the person had not deferred the contribution or been given the approval for staged payment. Under Part 5 of that Act the person will then be liable to pay interest and penalty tax from what would have been the last day for payment of the whole of the contribution under section 201SL or 201SMAA(6).
(2) Despite subsection (1), a person remains liable under the work-in-kind agreement to perform the obligations under the agreement.".